Alex Pulaski of the Portland Oregonian had been working on the following piece for the last several weeks:
When something goes terribly wrong with peanut butter, lettuce or spinach, Bill Marler starts adding telephone lines to handle calls pouring into his Seattle office.
Marler has emerged as the country’s preeminent plaintiff’s lawyer in food-borne-illness cases. His firm has won nearly $300 million in settlements from restaurants and suppliers, and the financial drain — coupled with Marler’s constant calls for reform — has leveled pressure on industry and government to better police food.
“Put me out of business,” Marler repeats as his rallying cry.
But business has never been more brisk. Government regulators play a limited role in addressing rising consumer claims of harm from what they have eaten. As a result, lawyers on both sides of such food fights have found a lucrative line of business working out differences between consumers and corporations over U.S. food safety.
Even before ConAgra Foods Inc. began recalling salmonella-tainted peanut butter last month, resulting in 4,500 potential victims contacting Marler’s office, he and his staff were inundated. Among their current caseload are reports of deaths and illnesses tied to E. coli in spinach, E. coli contamination at two taco chains and a hepatitis A outbreak at an Illinois restaurant.
While Marler has noisily accumulated headlines and six- to eight-figure checks — photocopies, or “trophies,” as Marler calls them, fill frames in his office hallways — another Northwest attorney has quietly built a practice defending many companies Marler targets.
From his office in downtown Portland, David Ernst has taken on roughly 700 such cases across the country during the past decade. ConAgra retained him on the salmonella peanut-butter outbreak, which is why Ernst and Marler found themselves sitting across from each other once again one day this month, outlining potential ways to categorize and ultimately settle cases.
The attorneys bring differing motivations to the table.
In many cases, Marler seeks money for families of children who have died or for victims facing huge medical bills and the possibility that their kidneys will give out because they ate a tainted cheeseburger or salad. The individual medical claims and resulting settlements in the salmonella outbreak, however, will not be nearly so substantial.
Ernst has to balance conflicting pressures between insurers trying to keep bills down and the CEOs of chains and corporations desperate to repair damaged brands.
What they share — demonstrated in a landmark hepatitis A outbreak that killed five and sickened 650 in 2003 — is a desire to cover legitimate medical bills and quickly settle cases.
Food-borne-illness cases almost never go to trial.
Strict product liability laws mean Marler and other plaintiffs’ attorneys don’t have to prove fault; they just have to show that unsafe food caused an injury.
“Once you’ve established that the person became sick from eating at a Safeway or McDonald’s, the only question is how big the check is,” says Dr. William Keene, the state of Oregon’s senior epidemiologist.
In addition, the immense power of media reports of such outbreaks and the visceral reaction from consumers, who shun products and restaurants as though the plague had broken out, crush business. The sooner claims end and news subsides, the faster brands recover.
Marler blogs continually on food-borne illness and is a magnet for media attention: On a recent day he left his office, where a CNN crew was encamped, to visit a Seattle sound studio for an interview with National Public Radio.
The food business doesn’t want cases to reach trial. As Marler is fond of pointing out — and did in a speaking engagement to a hostile crowd of California farmers this month — a jury is composed of 12 consumers. Everybody eats.
Food-borne illness crashed into public consciousness in 1993, when four people died and hundreds more fell ill from Jack in the Box hamburgers tainted by E. coli in Washington and other Western states.
The outbreak proved pivotal in Marler’s career. He represented the family of a 9-year-old girl from Redmond, Wash., who fell into a 42-day coma and nearly died. The case was settled for $15.6 million.
In 1998, he joined forces with two attorneys who had opposed him in defending Jack in the Box’s parent company. Marler Clark has since grown to a six-lawyer firm handling nothing but food-related claims.
Ernst’s civil practice with the large West Coast law firm of Bullivant Houser Bailey gradually grew into a specialty in defending outbreaks. Ernst figures he has faced Marler in nearly 200 cases in the past decade.
Each case starts with someone getting sick. If food is a suspect, local public-health authorities are notified.
They begin investigating the outbreak’s causes and can close a restaurant for health violations. The federal government can pressure manufacturers to voluntarily recall food items.
But typically government entities are seeking corrective action, whereas lawyers such as Marler seeking damages wield financial clout.
Tony Klaus of Salem contacted Marler’s office in 2000 after his two sons, ages 1 and 4, were hospitalized with complications from an E. coli outbreak at a Salem Wendy’s. His youngest son lost about one-third of his kidney function and faces the prospect of requiring a kidney transplant as he grows older.
“Our concern was, 20 years from now, we can’t go back to Wendy’s and say we need medical care,” Klaus says.
After contacts from potential clients, Marler’s firm starts acting almost as a health department would. Victims fill out questionnaires. Staff members request medical records and sift government reports.
Through the media, Marler frequently exerts pressure on corporations to immediately begin paying victims’ medical bills and lost wages. Sometimes Marler attorneys file suit, but often negotiations begin and conclude without lawsuits.
Ernst gets phone calls from frantic CEOs whose business has dried up as news reports spread word of illness. Ernst begins coordinating with insurers, requests health department records and ensures that someone — usually a public-relations firm, not him — addresses the media.
Hugh Hilton, CEO of the parent company of a Chi-Chi’s restaurant in Pennsylvania that was tied to a hepatitis A outbreak, found himself calling Ernst in November 2003.
Hilton closed the restaurant and assembled a crisis team, but as reports of illness — then deaths — dribbled in, the damage grew so great that managers spent hours just trying to figure out what to say to victims.
“We had to be very careful,” Hilton says, “because we had Bill Marler on the scene. You’d love to say, ‘We feel terrible,’ but you have to be extremely circumspect in what you say so it’s not twisted around by a plaintiff’s lawyer.”
Ernst, as it turns out, tells his clients “it’s OK to say you’re sorry.” He also encourages them to settle quickly so they can get their business back on its feet.
“If you have a trial,” Ernst says, “you have failed. This is not about lawyers, it’s about selling products. It’s about customers.”
Only one of Ernst’s food-borne-illness cases has reached trial, and none has in which he has faced Marler.
Ernst and Hilton devised an expedited mediation plan that allowed 550 cases to be settled in 13 months. Marler’s firm represented nearly 150 individuals.
As cases progress, the substance of each claim rests in settlement-demand letters prepared by attorneys such as Marler. They paint pictures of victims — their illnesses, hobbies, loves, life expectancies — and recite their medical bills and the outbreak’s history.
They are not maudlin, but sometimes, when the letters come with photos or home movies that Ernst often reviews at home, he admits to fighting back tears.
“It’s hard,” he says. “These people didn’t have anything to do with the tragedy, other than that they chose to eat there.”
Ernst says his specialty hasn’t substantially altered his family’s eating habits. But Marler’s daughters, ages 7, 11 and 14, have never eaten a hamburger.
“It’s hard to enjoy a hamburger,” Marler says, “when in your mind’s eye you’re seeing a family . . . taking their child off of life support.”
Though no one appears to track legal actions stemming from food-borne illness, recent outbreaks show the most disturbing trends in produce.
Roughly 3,100 outbreaks occurred each year in produce between 2000 and 2004, according to a database maintained by the nonprofit Center for Science in the Public Interest.
Outbreaks occur more commonly in seafood, but produce cases sicken about five times as many people.
Since 2002, after ConAgra recalled 18.6 million pounds of hamburger contaminated by E. coli, the U.S. Department of Agriculture has ordered packers and slaughterhouses to take specific steps to reduce microbial contamination. E. coli contamination of meat — once Marler’s main source of casework — has plummeted, and Marler credits the meat industry for drying up that source of litigation.
Accordingly, Marler has argued long and loudly that produce should be subject to the same kinds of sanitation measures and inspections as the meat supply. He also has joined calls for a unified food inspection agency.
Earlier this month, when the U.S. Food and Drug Administration issued voluntary guidelines on how fruit and vegetable processors could reduce food-safety hazards, Marler labeled them “silly” for carrying no legal authority. He has also heaped scorn on U.S. Rep. Sam Farr, D-Calif., for authoring legislation to reimburse spinach growers for as much as $25 million for their losses from last year’s E. coli outbreak and suggested the money would be better spent on research or policing produce.
Marler visited Washington, D.C., earlier this year to advocate for better government oversight of food supplies. If that’s not forthcoming, he suggests that large restaurant and grocery chains wield their economic power to force growers and produce suppliers to improve their practices.
Through a not-for-profit consulting company, Marler Clark attorneys advise food companies on how to improve their practices and avoid getting sued.
Keene, the Oregon epidemiologist, says the threat of legal action is a powerful deterrent against food suppliers cutting corners.
As one produce packer said this month, Marler is a “necessary evil.”
People don’t like lawyers, Marler acknowledges, adding wryly, “for pretty good reasons.”
Which leads him back to his challenge to the food industry: Put him out of business.
“I’d like for people to think of everything they can do,” he says, “to make me go out and get another job.”